Thursday, March 10, 2016

Apple Scores Judicial Win

By Douglas V. Gibbs

Apple has told the federal government to piss off, and those who support the 4th Amendment that enumerates our right to be protected against unreasonable search and seizure, and those of us who know that if you give the federal government an inch, they will take a mile, are excited that Apple is taking a stand.

The battle has made it to the courts, and for once, a judge got it right.

“Apple scored a major legal victory in its ongoing battle against the FBI on Monday when a federal magistrate judge in New York rejected the U.S. government’s request as part of a drug case to force the company to help it extract data from a locked iPhone. The ruling from U.S. Magistrate Judge James Orenstein was issued as part of the criminal case against Jun Feng, who pleaded guilty in October to drug charges. It is a significant boost to Apple’s well-publicized campaign to resist the FBI’s similar efforts in the case of the San Bernardino killers.”

“Perhaps most devastating to the FBI’s case is Orenstein’s recognition that the purpose of the FBI’s request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally. That the FBI is seeking to establish broad precedent is a key argument made by Apple and its supporters in the San Bernardino case. To accept that the U.S. government has this power, ruled the court, is to vest law enforcement agencies with statutory authority that Congress itself never enacted.”

And again, “The judge also accused the government of trying to manipulate secret judicial proceedings to obtain powers for itself against Apple that public debate and Congress would never permit. It is, Orenstein wrote, ‘clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.’ Because the government wants the courts rather than Congress to grant this power, the ‘government’s interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction … raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.’”

Continuing: “Finally, the ruling recognized that forcing Apple to compromise its own security systems at the behest of the U.S. government would impose a considerable cost far beyond financial expenses.”

“This cost, Orenstein wrote, is particularly high since--rejecting the FBI’s claim in the public debate that its request is limited to just one phone ‘the record of this case makes clear that the burdens the government seeks to impose on Apple under the authority of the AWA are not nearly so limited.’ To the contrary, ‘it clearly intends to continue seeking assistance that is similarly burdensome --if not far more so--for the foreseeable future.’”

One of Apple’s attorneys was even more direct in assessing the importance of this case:

“Apple’s attorney painted a scary picture if Apple loses its fight with the FBI.

“In an interview with CNNMoney’s Laurie Segall on Friday, Ted Olson warned of a government with ‘limitless’ powers that could ‘listen to your conversations.’

“Olson said the demands would mount.

“‘You can imagine every different law enforcement official telling Apple we want a new product to get into something,’ Olson said. ‘Even a state judge could order Apple to build something. There’s no stopping point. That would lead to a police state.’”

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